BetweenBhs Book Printing Sdn Bhd(Company No.: 95134-K) … PlaintiffAndPenerbitan Imt Sdn Bhd(Company No.: 944911-V) … Defendant

  

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IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR IN THE FEDERAL TERRITORY SUIT NO: 22NCC-107-04/2015

 

BETWEEN

 

BHS BOOK PRINTING SDN BHD

 

(Company No.: 95134-K) … PLAINTIFF

 

AND

 

PENERBITAN IMT SDN BHD

 

(Company No.: 944911-V) … DEFENDANT

 

JUDGMENT

 

(Court enclosure no 7)

 

A. Introduction

 

1. This case concerns a summary judgment application by the plaintiff company (Plaintiff), for the price of school text books and materials which have been printed, bound, sold and delivered by the Plaintiff to the defendant company (Defendant). The only novel question is whether the Plaintiff is entitled to interest at the rate of 1% per month on all overdue payments as stated in the Plaintiff’s invoices which have been sent to the Defendant and has not been objected to by the Defendant.

 

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B. Facts

 

2. The Plaintiff is in the business of printing, binding and selling school text books and materials.

 

3. At the request of the Defendant, the Plaintiff had printed, bound, sold and delivered to the Defendant school text books and materials (Goods) which totaled RM2,471,120.98 (Total Due) as of 30.4.2014. The deliveries of the Goods and the Total Due are evidenced by the following documents:

 

(a) the Plaintiff would send “quotations” to the Defendant regarding the titles, prices and quantities of the Goods (Quotations). Once the Defendant had accepted the Quotations, the Goods would be delivered by the Plaintiff to the Defendant with the Plaintiff’s invoices. A total of 21 Invoices dated from 18.2.2014 to 1.7.2014, had been sent by the Plaintiff to the Defendant (21 Invoices). All the 21 Invoices –

 

(i) under the caption “IMPORTANT’, stated –

 

(1) any discrepancy in the Invoice “must’ be informed within 7 days from the date of the Invoice;

 

(2) Goods which had been sold could not be returned without the Plaintiff’s consent; and

 

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(3) interest at the rate of 1% per month would be charged for all overdue payments; and

 

(ii) had been signed, dated and stamped with the Defendant’s rubber stamp;

 

(b) a statement of account (Statement of Account) had been prepared by the Plaintiff and sent to the Defendant by way of an email dated

 

24.6.2014 (Plaintiff’s Email dated 24.6.2014). The Statement of Account provided that if there was any discrepancy in the Statement of Account, the Defendant should inform the Plaintiff in writing within 10 days; and

 

(c) the Plaintiff’s auditors, Messrs YK Tan, Lee & Associates (Messrs YKT), had sent a query to the Defendant to confirm that the Total Due was outstanding from the Defendant to the Plaintiff as of

 

30.4.2014 (Messrs YKT’s Query). The Defendant confirmed Messrs YKT’s Query by signing and placing the Defendant’s rubber stamp on Messrs YKT’s Query.

 

4. The Defendant had made 4 part payments for the Goods to the Plaintiff (Defendant’s 4 Part Payments) on the following dates:

 

(a) 7.4.2014 – RM150,000.00;

 

(b) 6.5.2014 – RM300,000.00;

 

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(c) 9.6.2014 – RM76,807.98.00; and

 

(d) 13.6.2014 – RM100,000.00.

 

5. In a meeting between the employees of the Plaintiff and Defendant on

 

20.11.2014 (Meeting on 20.11.2014), the Plaintiff agreed to give a credit note of RM280,000.00 to the Defendant subject to 2 conditions as follows:

 

(a) after deducting the credit note of RM280,000, the Defendant would owe a sum of RM1,708,883 to the Plaintiff (New Balance). The Defendant would settle half of the New Balance, amounting to RM854,441.50 by way of post-dated cheques for each month until March 2015; and

 

(b) the remainder of the New Balance (RM854,441.50) would be settled by the Defendant by June 2015

 

(Conditional Bilateral Variation). The Conditional Bilateral Variation was stated in the Plaintiff’s letter dated 18.12.2014 to the Defendant (Plaintiff’s Letter dated 18.12.2014).

 

6. The Defendant did not comply with the Conditional Bilateral Variation when –

 

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(a) the Defendant cancelled payment of a cheque dated 26.1.2015 issued by the Defendant to the Plaintiff for the sum of RM200,000.00 (Defendant’s RM200,000 Cheque); and

 

(b) the Defendant did not forward post-dated cheques to pay the New Balance as agreed at the Meeting on 20.11.2014.

 

7. The Plaintiff’s solicitors, Messrs Maylee Gan & Tai, sent a demand dated 28.1.2015 to the Defendant (Plaintiff’s Demand dated 28.1.2015). The Plaintiff’s Demand dated 28.1.2015 demanded the Defendant to pay RM1,987,283.00 for the Goods. There was no reply by the Defendant to the Plaintiff’s Demand dated 28.1.2015.

 

8. The Plaintiff’s senior manager, Ms. Yat Mei Kean [who affirmed all the Plaintiff’s affidavits in support of Court Enc. No. 7 (Plaintiff’s Deponent)], had sent “WhatsApp” messages on the following dates to the Defendant’s general manager, Mr. Teoh Hok Beng (who affirmed all the Defendant’s affidavits in this case) requesting for the Defendant’s payment for the Goods:

 

(a) 9.6.2014;

 

(b) 23.6.2014;

 

(c) 24.6.2014;

 

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(d) 4.7.2014;

 

(e) 8.7.2014;

 

(f) 17.7.2014;

 

(g) 21.7.2014;

 

(h) 1.8.2014;

 

(i) 4.8.2014;

 

(j) 11.8.2014;

 

(k) 27.8.2014;

 

(l) 28.8.2014;

 

(m) 7.10.2014;

 

(n) 13.10.2014;

 

(o) 24.10.2014;

 

(p) 25.10.2014; and

 

(q) 27.10.2014

 

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(Plaintiff’s 17 WhatsApp Messages).

 

C. Legal proceedings

 

9. The Plaintiff filed this action against the Defendant and claimed for the following relief in the statement of claim (SOC):

 

(a) a sum of RM1,965,083.00 for the Goods (Claimed Sum);

 

(b) interest which had accrued on the sum due from the Defendant to the Plaintiff amounting to RM182,820.90 as at 31.3.2015;

 

(c) 1% monthly interest on the Claimed Sum from 1.4.2015 until the date of full settlement of the Claimed Sum; and

 

(d) costs.

 

10. In this case, the Plaintiff had applied for summary judgment and claimed for the same relief in the SOC (Court Enc. No. 7).

 

D. Defendant’s contentions

 

11. The Defendant’s learned counsel, Mr. Joel Lim Phan Hong, resisted Court Enc. No. 7 on the following grounds:

 

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(a) the Defendant had not agreed to the prices for the Goods as stated in the 21 Invoices;

 

(b) the Defendant’s part payments for the Goods had been made in good faith based on the estimated “market rate” of the Goods;

 

(c) the 21 Invoices did not charge the Goods at the “market rate”. The Defendant “discovered” that the Plaintiff had charged for the Goods which had been “outsourced” to third parties and these third parties had invoiced the Defendant directly. In fact, the Plaintiff had imposed “additional charges” for the Goods and there were instances of “double charging” by the Plaintiff;

 

(d) the Defendant had met the Plaintiff in September 2014 (Meeting in September 2014) where the Defendant had required the Plaintiff to charge the Goods based on “market rate” and had raised the issue regarding the Plaintiff’s “double charging”. At the Meeting in September 2014, the Plaintiff had agreed to make the necessary amendments to the prices of the Goods as stated in the Invoices. The Defendant sent a letter dated 10.9.2014 to the Plaintiff which stated that the Plaintiff agreed to amend the Invoices (Defendant’s Letter dated 10.9.2014);

 

(e) in a meeting in November 2014, the Plaintiff gave a credit note of RM280,000.00 to the Defendant (RM280,000 Credit Note). The Defendant however “discovered’ that the RM280,000 Credit Note only applied to a few but not the majority of the 21 Invoices;

 

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(f) on or about 18.12.2014, the Plaintiff met the Defendant and agreed to amend all the Invoices by 5.1.2015 before the Plaintiff would demand payment from the Defendant (Alleged Bilateral Variation). Based on the Alleged Bilateral Variation, the Defendant gave the Defendant’s RM200,000 Cheque to the Plaintiff;

 

(g) on or about 23.12.2014, the Plaintiff emailed to the Defendant a breakdown of “price reduction” and credit notes (Plaintiff’s Email dated 23.12.2014). However, the Plaintiff still “ignored” a majority of the 21 Invoices. Hence, the Defendant raised this matter again with the Plaintiff;

 

(h) before the “dateline” of 5.1.2015, the Plaintiff requested for an additional week to amend the prices in the 21 Invoices. The Defendant refused such a request by the Plaintiff and cancelled the payment of the Defendant’s RM200,000 Cheque. The Defendant sent a letter dated 20.1.2015 to the Plaintiff which stated that the Defendant’s RM200,000 Cheque was cancelled because the Plaintiff had failed to correct the Invoices (Defendant’s Letter dated 20.1.2015); and

 

(i) the following issues need to be tried in this case –

 

(i) whether the Plaintiff’s suit is pre-mature as the Plaintiff has not amended the Invoices despite the Plaintiff’s agreement to do so;

 

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(ii) whether the Plaintiff has made “double claims” in this case;

 

(iii) whether the Plaintiff could enforce its rights in contract against the Defendant when the Plaintiff had breached such a contract; and

 

(iv) whether the Plaintiff could unilaterally impose interest for late payment on the Defendant.

 

12. The Defendant relied on the following cases to oppose Court Enc. No. 7:

 

(a) the Supreme Court case of Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183;

 

(b) the High Court’s decision in PBJV Group Sdn Bhd v Target Resources Corporation Sdn Bhd & Anor [2013] 1 LNS 774;

 

(c) the High Court case of Cheah Suan Lee & Anor v Platinum JV Development Sdn Bhd & Ors [2015] 1 LNS 227; and

 

(d) the High Court’s judgment in Chase Perdana Bhd v Md Afendi bin

 

Hamdan [2006] 5 MLJ 798.

 

E. Relevant principles in deciding summary judgment applications

 

13. The following trite principles apply in deciding Court Enc. No. 7:

 

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(a) once the Plaintiff has fulfilled the following 3 matters required by Order 14 rules 1(1) and 2(1) of the Rules of Court 2012 (RC), namely –

 

(i) the SOC has been served on the Defendant;

 

(ii) the Defendant has entered appearance; and

 

(iii) the Plaintiff’s Deponent has affirmed an affidavit verifying the facts on which the SOC is based and the belief of the Plaintiff’s Deponent that there is no defence by the Defendant to the SOC

 

– the burden then shifts to the Defendant to resist Court Enc. No. 7 by satisfying the court under Order 14 rules 3(1) and 4(1) RC that there is “an issue or question in dispute which ought to be tried”. This is clear from the following 2 Federal Court cases –

 

(1) please see George Seah FJ’s (as he then was) judgment in National Company for Foreign Trade v Kayu Raya Sdn

 

Bhd [1984] 1 CLJ (Rep) 283, at 285; and

 

(2) the judgment of Steve Shim CJ (Sabah & Sarawak) in Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 544, at 551-552; and

 

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(b) even if the Defendants cannot raise any triable issue, Court Enc. No. 7 may still be dismissed under Order 14 rule 3(1) RC if “there ought for some other reason to be a trial”, namely there are circumstances that ought to be investigated by the court – please see the Federal Court’s judgment delivered by Mohd. Dzaiddin FCJ (as he then was) in United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 1 MLJ 657, at 666-668.

 

14. Based on the above principles, I will first decide whether the Defendant has raised any issue to be tried in This Suit and assuming the Defendant is not able to raise any triable issue, is there “some other reason for than

 

F. Sale of goods contract between Plaintiff and Defendant

 

15. The Goods in this case fall within the wide meaning of the definition of “goods” in s 2 of the Sale of Goods Act 1957 (SGA) as follows:

 

“ “goods” means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;”

 

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(emphasis added).

 

16. Sections 4(1) and 5 SGA provide as follows:

 

“4(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another.

 

5(1) A contract of sale is made by an offer to buy or sell goods for a price and the acceptance of such offer. The contract may provide for the immediate delivery of the goods or immediate payment of the price or both, for the delivery or payment by instalments, or that the delivery or payment or both shall be postponed.

 

(2) Subject to any law for the time being in force, a contract of

 

sale may be made writing or by word of mouth, or partly in writing and partly by word of mouth or may be implied from the conduct of the parties.”

 

(emphasis added).

 

17. By reason of the 21 Invoices (all the 21 Invoices had the name, signature, date, address, company number and rubber stamp of the Defendant), I find that there is a written contract of sale of Goods between the Plaintiff and Defendant (Sale Agreement) within the meaning of ss 4(1) and 5(2) SGA. Such a finding is supported by the

 

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following judgment of Salleh Abas FJ (as he then was) in the Federal Court case of Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124, at 124, 125 and 126:

 

“In this case the appellants sued the respondents for a sum of $22,997.76 being the balance of the price of chemicals and fertilisers sold and delivered by the appellants to the respondents. In their defence, the respondents denied liability and went on to claim that it was made known to the appellants at the time of the order that the ultimate buyer was Syahazam Sdn. Bhd.; in other words the defendants claimed that in the purchase of these goods they were agents for Syahazam Sdn. Bhd.

 

The appellants took out summons-in-chambers under Order 14 applying for leave to sign final judgment against the respondents on the ground that the respondents’ defence “is sham, vexatious and is merely to delay normal proceedings”. The summons came before the Senior Assistant Registrar who dismissed it, and on appeal against the Registrar’s decision, Mr. Justice Datuk Syed Othman dismissed the appellants’ appeal, and hence the appellants appeal further to the Federal Court.

 

The appellants’ case is founded on the sales invoice dated July 26,

 

1976, stating that the goods in question were sold to the respondents (Persatuan Peladang Bakti Melaka, 132, Jalan Hang Tuah, Melaka), and on the delivery note of the same date showing that the goods were received by the respondents whose rubber stamp was impressed on the line entitled “Tanda Tangan Penerima Dan Chop Perniagaan”. Zainab binti Tamby who signed the delivery note on behalf of the respondents in her affidavit sworn on December 21,

 

1977, admitted ordering the goods but denied that she did so on behalf of the respondent. She claimed that the goods were in fact “ordered for and on behalf of and on account of Syahazam Sdn. Bhd. …

 

As regards the first proposition that the goods were not ordered by her on behalf of the respondents, the sales invoice and the delivery note dated July 26, 1976, clearly contradict her. There is however, no denial by the respondents that the goods were ordered by them and

 

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delivered to them. There is also no dispute as to the genuineness of the sales invoice and the delivery note on which the appellants’ case is founded. In our view, the respondents’ contention that goods were not ordered on their behalf must fail in view of the sales invoice and the delivery note. …

 

The sales invoice and the delivery note being the contract reduced in writing between the appellants and the respondents section 92 [of the Evidence Act 1950 (EA)] therefore applies. …

 

In our view, the sales invoice and the delivery note show that even if the respondents were agents for Syahazam in respect of the sale and delivery of those goods, they were contracting in such form as comes within the ambit of what Lord Denman said in Jones v. Littledale. Thus the respondents are clearly liable. The respondents’ case being defenceless, we allow this appeal with costs here and in the court below. The appellants therefore are entitled to sign final judgment in terms of their prayer in the summons-inchambers No. 847/1977.”

 

(emphasis added).

 

18. Paragraph 3 of the Defendant’s affidavit affirmed on 17.6.2015 (Court Enc. No. 12) had admitted that the Defendant had accepted the delivery of the Goods from the Plaintiff.

 

G. Defendant’s breach of Sale Agreement

 

19. Sections 31 and 32 SGA provide as follows:

 

“Duties of seller and buyer

 

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31. It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of the contract of sale.

 

Payment and delivery are concurrent conditions

 

32. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller shall be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer shall be ready and willing to pay the price in exchange for possession of the goods .”

 

(emphasis added).

 

20. Upon the delivery of the Goods, the Defendant was obliged to pay the prices of the Goods. The Plaintiff had given 90 days “credit period” for the Defendant to pay the prices of the Goods as stated in the 21 Invoices. It is clear that under ss 31 and 32 SGA, the Defendant had the contractual duty to pay the prices of the Goods after the expiry of the 90 days credit period. In this case, the Defendant did not dispute that the 90 days credit period had expired. This is clear from the following evidence:

 

(a) the 21 Invoices;

 

(b) the Statement of Account;

 

(c) Messrs YKT’s Query which contained the Defendant’s written admission regarding the Total Due;

 

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(d) the Plaintiff’s 17 WhatsApp Messages. In Mok Yii Chek v Sovo Sdn Bhd & Ors [2015] AMEJ 650, at paragraphs 21-24, I have admitted WhatsApp messages as contemporaneous documentary evidence and have given weight to such evidence;

 

(e) the Defendant’s 4 Part Payments. If the Defendant did not have an obligation under the Sale Agreement to pay the prices of the Goods after the expiry of the 90 days credit periods in question, the Defendant’s 4 Part Payments would not have been made by the Defendant. Nor did the Defendant specify that the Defendant’s 4 Part Payments had been made –

 

(i) without prejudice to the Defendant’s right to insist that the prices of the Goods should be at the “market rate”; or

 

(ii) under protest by the Defendant; and

 

(f) the Defendant did not deny the Plaintiff’s Demand dated 28.1.2015. In a commercial relationship, the failure of a party to deny a solicitor’s demand by the opposing party amounts to an implied admission. I rely on 2 Court of Appeal cases as follows –

 

(i) in David Wong Hon Leong v Noorazman bin bin Adnan

 

[1995] 4 CLJ 155, at 159, Gopal Sri Ram JCA (as he then was) gave the following judgment –

 

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“During argument, we registered our surprise at the learned Judge’s reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant.

 

In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1987] 2 MLJ 479-487:

 

In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff’s testimony in support of such promise. Lord Esher M.R., in his judgment, remarked,

 

Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise. ’ (Emphasis added). Earlier, in his judgment, he said, ‘Now there are cases – business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree.”

 

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(emphasis added); and

 

(ii) David Wong Hon Leong has been affirmed by Hasan Lah JCA (as he then was) in Jetara Sdn Bhd v Maju Holdings Sdn

 

Bhd [2007] 3 CLJ 41, at 55.

 

21. The above evidence had clearly proven that the Defendant had breached the Sale Agreement by failing to pay the prices of the Goods after the expiry of the 90 days credit periods in question (Defendant’s Breach).

 

22. The Defendant’s Breach gave rise to the Plaintiff’s right to claim from the Defendant for the unpaid balance of the prices of the Goods, namely the Claimed Sum. Such a right is conferred by case law based on contract and s 55(1) SGA which states as follows:

 

“55(1) Where under a contract of sale the property in the goods has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may sue him for the price of the goods”

 

(emphasis added).

 

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H. Defendant has not raised any triable issue

 

23. I am of the view that the Defendant has failed to discharge the legal onus under Order 14 rules 3(1) and 4(1) RC to raise any issue to be tried in this case. As explained in the above Part G, there is overwhelming evidence concerning the Defendant’s Breach. I will now explain why I am not able to accept the Defendant’s contentions in resisting Court Enc. No. 7.

 

24. The Defendant is estopped in this case from raising the following contentions:

 

(a) the Defendant had not agreed to the prices for the Goods as stated in the 21 Invoices;

 

(b) the 21 Invoices did not charge the Goods at “market rate”;

 

(c) the Plaintiff had imposed “additional charges” for the Goods;

 

(d) the Plaintiff had been guilty of “double charging”; and

 

(e) the Plaintiff had made “double claims” in this case.

 

25. The Defendant is estopped from raising all the complaints enumerated in the above paragraph 24 for the following reasons:

 

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(a) the 21 Invoices had clearly provided under the caption “IMPORTANT that any discrepancy in the 21 Invoices “must be informed by the Defendant to the Plaintiff within 7 days from the dates of the 21 Invoices;

 

(b) the Statement of Account stated that the Defendant should inform the Plaintiff in writing of any discrepancy in the Statement of Account;

 

(c) the Defendant did not state any complaint when the Defendant unconditionally agreed to the Total Due in Messrs YKT’s Query;

 

(d) the Defendant’s 4 Part Payments were not made “under protest’ or subject to any of the complaints now raised by the Defendant;

 

(e) the Defendant did not reply to the Plaintiff’s Demand dated 28.1.2015 by alluding to any complaint which the Defendant had raised in this case;

 

(f) the Defendant did not reply to the Plaintiff’s Email dated 24.6.2014 (which attached the Statement of Account) and state the Defendant’s complaints. In fact, the Defendant had not sent any letter, facsimile or email to the Plaintiff to place on record any one of the Defendant’s complaints; and

 

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(g) the Defendant did not reply to any one of the Plaintiff’s 17 WhatsApp Messages, let alone send a WhatsApp message regarding any of the Defendant’s complaints.

 

26. The estoppel principle applies here according to the following cases:

 

(a) in the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283, at 290, 294, 295, Gopal Sri Ram JCA (as he then was) held as follows –

 

“Following this correspondence, for a period of about seven months, Chemitrade sold and delivered goods to the appellant.

 

In respect of each sale, the appellant issued a purchase order to Chemitrade which in turn issued an invoice to the appellant indicating a credit period of two months from the date of the invoice. Chemitrade then handed a copy of the invoice to the respondent who sent it to the appellant after having rubber stamped it with the following endorsement:

 

Notice Of Assignment

 

Payable to Arab-Malaysian Merchant Bank Bhd. 23rd Floor, Bangunan Arab-Malaysian, No. 55, Jalan Raja Chulan, (P.O. Box. 11471, 50746 Kuala Lumpur) who has purchased this account. Remittance is to be made directly to them. Any objection to this bill or its terms must be reported to them within 14 days after its receipt.

 

(When making payment please make cheque to AMMB Factoring). (Emphasis added.)

 

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It is common ground that the appellant did not make any complaint about any of the invoices thus indorsed and sent by the respondent to it within the period of fourteen days prescribed by the indorsement. Neither did the appellant make any contemporaneous challenge as to the right of the respondent to impose the fourteen day period by way of the indorsement. It is also not in issue that the appellant, without raising any question on either of these points paid the respondent on several of the invoices.

 

The time has come for this Court to recognise that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless.

 

We would add that it is wrong to apply the maxim “estoppel may be used as a shield but not a sword” as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it. The true nature of the doctrine in this context is that stated by Lord Russell of Killowen in Dawsons Bank v. Nippon Menkwa Kabushiki Kaisha LR 62 IA 100, 108:

 

Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence

 

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of some fact the existence of which would destroy the cause of action ”

 

(emphasis added);

 

(b) in Sykt Tan Thian Siong Sdn Bhd v Sykt Siaw Teck Hwa Realty & Development Sdn Bhd [1983] CLJ (Rep) 877, at 879 and 880, VC George J (as he then was) decided in the High Court as follows –

 

“This appeal is against the dismissal by the learned Senior Assistant Registrar of the plaintiff’s application for summary judgment. The plaintiff’s claim was for the sum of RM105,782.50 which amount is claimed to be the balance due for the supply of earth to the defendant pursuant to the terms of a written contract entered into between the parties dated 18 February 1981.

 

It was a term of the contract that the defendant was to make payment to the plaintiff on a monthly basis and within 7 days of the receipt of a statement of account and invoices in respect of the amounts due and payable at that stage. Half monthly statements of accounts were rendered based on bills sent. On the statement of account an endorsement “if you do not agree with the above balance please inform us within 2 weeks”.

 

The defendant has filed a statement of defence and took out a counterclaim in respect of certain amounts which they claim they are entitled for the hire of vibrator compactors and the overcharging for the hire of certain vehicles.

 

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I think there is a short answer to this dispute. In effect the terms of the contract between the parties called for there to be an account stated between the parties every month, the account stated to come about by the plaintiff delivering a statement of account, the defendant having 2 weeks within which to query the accounts. The law is that in the event of non-query an account stated came into existence which creates an estoppel against the defendant from querying the accounts thereafter. There are situations, for example if there is fraud, when a query may be permitted but on the facts of this case, in my opinion, no such situation exists. Particularly as the defendants were on notice in October of the lorries not being loaded to the specific capacity and they thereafter continuing with the system of issuing of delivery receipts acknowledging even the quantum of earth, I think that the defendants have waived any right to complain that they may have had and cannot now be heard to rake up what was settled by way of the account stated.

 

I allowed the appeal and ordered that final judgment be entered against the defendant…”

 

(emphasis added);

 

(c) VC George J held in the High Court case of Sykt Pakar Kayu & Perdagangan Sdn Bhd v MAA-SK Sdn Bhd [1986] CLJ (Rep) 694, at 695, as follows –

 

“ The plaintiffs in February 1984 took out O. 14 proceedings and exhibited inter alia what was purported to be the actual orders placed by the defendants for the goods. It was alleged that on

 

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delivery of the goods acknowledgment of receipt thereof was made on the duplicate of the relevant invoice. Samples of these duplicates with the relevant acknowledgment were exhibited. It was further alleged that monthly statements of the account between the parties were sent by the plaintiffs to the defendants. A sample was exhibited. It was alleged that various payments to account had been made particulars of these were given in the affidavit in support of the O. 14 application. It was conceded that there were certain discrepancies in the supply of the goods and it was pointed out that the defendants had issued a debit note for the value of the discrepancies which debit note the plaintiffs had accepted.

 

No doubt because of those exhibits disclosed by the plaintiffs, in opposing the O. 14 application the defendants took a stand somewhat different from the stand taken by the said paragraph 3 of the statement of defence. They now conceded that goods were ordered and delivered and they did not dispute the contention that goods were ordered and delivered and they did not dispute the contention that the deliveries were acknowledged. However, they now complained that the plaintiffs had supplied more goods than ordered, short supplied sawn timber in the lengths required and over supplied timber at greater lengths than ordered and had also supplied timber not ordered at all. What was held out to be particulars in respect of these complaints were set out in the affidavit in reply of Koh Han Boon the administrative manager of the defendants. It dealt with orders given by the defendants in September 1981 and January 1982. It seems strange that if those detailed particulars were available why they were not brought to the attention of the plaintiffs earlier, why complaints were not made earlier and why even when the plaintiffs’ solicitors wrote demanding payment, the

 

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particulars were not brought to those solicitors’ attention. It seems strange that whereas the defendants had previously issued debit notes in respect of discrepancies, none were issued in respect of the discrepancies now complained of. Most of all it seems strange that even when the statement of defence was settled and filed those complaints with the particulars or at all were not relied on. Further the monthly statements were not queried and worse, as has been seen, the defendants had admitted in writing to the outstanding balance being RM169,353.90 as at 31st January 1983. The defendants contended that they are not bound by their written admission verifying the balance but no plausible reason or explanation had been given to support the contention that their written admission of the amount owing is not binding on the defendants. The irresistable conclusion was that the complaints are a sham and that neither the statement of defence filed nor the affidavit in reply to the Order 14 provides any or any reasonable defence. No bona fide triable issues had been raised. Accordingly the plaintiffs were entitled to enter final judgment”

 

(emphasis added);

 

(d) in the High Court case of Emperee Industries Sdn Bhd v Genagco

 

Sdn Bhd [1987] CLJ (Rep) 591, at 591 and 592, VC George decided as follows –

 

“The plaintiffs’ claim is for RM114,388.96 for goods sold and delivered. A statement of defence was filed. The plaintiffs took out O. 14 proceedings and obtained summary judgment for the

 

27

 

amount claimed with interest and costs. The defendants have appealed against that order.

 

In support of their application for summary judgment the plaintiffs exhibited all the delivery orders in respect of the timber supplied the price for which they are suing for. Each of the delivery orders is addressed to “Messrs. Genagco Sdn. Bhd” Mr. Chieng’s name is not mentioned. Receipt of each delivery has been acknowledged. The plaintiffs also exhibited the invoice addressed and sent to the defendants in respect of 84 bundles of keruing timber. The amount invoiced for was RM114,388.96. The calculation used to arrive at that amount is shown in the invoice. The invoice was dated 17 June 1985. This was followed by a statement of accounts dated 30 June 1985 again addressed and sent to the defendants. Then come 3 letters sent by the plaintiffs to the defendants in respect of the outstanding amount. In one of the letters it has been placed on record that one Mr. Fong of the defendant company had stated that part payment of the amount invoiced had been effected. In another that arrangement would be made for payment to be made as soon as possible.

 

In opposing the O. 14 application the defendants have not even attempted to explain away any of those documents. If in fact they had not ordered the goods surely they would have done something about the delivery order erroneously being addressed to them. Even overlooking that, there is the invoice which cannot be overlooked – surely if the defendants had not ordered the goods they would violently protested when they were invoiced for somebody else’s order.

 

The appeal is dismissed with costs .”

 

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(emphasis added);

 

(e) in Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772, at 775, 776 and 778, Suriyadi Halim Omar J (as he then was) followed Pernas Trading Sdn Bhd and decided as follows –

 

“[1] This is the plaintiff’s appeal against the decision of the sessions court judge dismissing its application for summary judgment under O 26A of the Subordinate Courts Rules 1980. The plaintiffs claim against the defendants in the court below is for the amount of RM218,662.80 being goods sold and delivered.

 

[2] It is the plaintiffs case that the first defendant had since May 2002 ordered goods from the plaintiff and the plaintiff had delivered the goods to the first defendant, the acceptance of which had been acknowledged by the first defendant, who had placed their company chops on the delivery orders. The delivery orders were duly signed by the first defendant’s representatives and addressed to the first defendant. The signature and chop on the delivery orders bear the words ‘Received Mentioned Goods in Good Condition and Water Free’.

 

[10] In coming to a decision in cases involving goods sold and delivered such as in this case, I would place due emphasis on the written documents, namely the statement of accounts, invoices, delivery orders, delivery notes and the debit notes. These documents would collectively constitute a contract reduced into writing. This principle had been laid down in the case of Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124 where Salleh Abas FJ (as he then was), delivering the judgment of the Federal Court said, ‘We feel that this course of action is not open to the respondents, as it is clear that under s 92 [EA], oral evidence to contradict, vary, add to or subtract from, the

 

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terms of any contract, grant or disposition of property which had been reduced in writing is not admissible. The

 

sales invoice and the delivery note being the contract reduced in writing between the appellants and the respondents s 92 therefore applies.’ See also YK Fung Securities Sdn Bhd v Ronald Yeoh Kheng Hian [1989] 3 MLJ 490 where the High Court had decided that ‘he was subsequently furnished with the relevant monthly statement of accounts to which he had no objections, protest or queries.’

 

[13] In the present case, the plaintiff had sent statement of accounts and invoices to the first defendant. The fact is undisputed. Letters of demand were sent by the plaintiff to the defendant and the defendant had neither protested nor questioned the plaintiff on the statements of accounts, Invoices, delivery notes, debit notes and the letter of demand. Furthermore, the first defendant had stopped payment of its two cheques issued to the plaintiff without giving any reasons.

 

[21] By virtue of the above reasons I find that the defendants have failed to raise any triable issues and I thereby allow the plaintiff’s appeal with costs .”

 

(emphasis made); and

 

(f) in the High Court case of HTC Global Services MSC Sdn Bhd v Kompakar Ebiz Sdn Bhd [2011] 9 MLJ 572, at 575 and 580, Kang Hwee Gee J (as he then was) decided as follows –

 

“[1] This is an appeal against the decision of the senior assistant registrar [SAR] in allowing the plaintiff’s application to enter summary judgment against the defendant for the sum of RM418,213.11 with interest and costs.

 

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[2] The plaintiff’s claim arose from services provided by the plaintiff to the defendant in respect of providing software for the defendant’s computers.

 

[26] The agreements were not disputed. To determine whether there is any triable issue or defence to the plaintiff’s claim, all that is necessary for the court to consider is whether the invoice had been issued and received and whether any disagreement over the item stated therein has been communicated to the plaintiff.

 

[27] It is clear from the affidavits of the parties that after having received those invoices on those two written contracts the defendant did not see it fit to lodge any complaint or disagreement on the items in the invoices until the suit was filed.

 

[28] The law is clear. Where a party fails to raise any objection on the invoice of which they have been served relating to any contract it is to be estopped from denying that payment is due from them. See Sykt Pakar Kayu & Perdagangan Sdn Bhd v MAA-sk Sdn Bhd [1986] 1 CLJ 595; MP Factors Sdn Bhd v Suangyan Projects Sdn Bhd & Ors [2007] 4 AMR 327.

 

[29] Similarly with respect to the third contract which is oral in nature, it is the duty of the defendant to object to the invoices that had been issued and received by them and having failed to do so the same principle of estoppel will apply. It is clear that in respect of the five invoices pertaining to the third contract no such objection had been lodged with the plaintiff until the suit is filed.

 

[30] In the event it is clear that there is no defence to the plaintiffs claim and no triable issue to go for trial save for the question of whether the plaintiff is entitled to

 

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charge interest for late payment. Such interest should only be chargeable if the contract so provides and in the present case there is no such provision in all of them.

 

[31] Accordingly, the appeal is dismissed with costs. The decision of the [SAR] is to be varied by disallowing the interest for late payment by removing prayer (ii) of the judgment ”

 

(emphasis made).

 

27. The Defendant cannot rely on the Alleged Bilateral Variation and RM280,000 Credit Note because the Defendant did not comply with the 2 following cumulative conditions for a lawful bilateral variation of the Sale Agreement, namely –

 

(a) the Defendant’s RM200,000 Cheque was cancelled by the Defendant; and

 

(b) the Defendant did not forward post-dated cheques to the Plaintiff.

 

28. Of the 4 cases relied on by the Defendant, it should be noted that in Chase Perdana Bhd v Md Afendi bin Hamdan [2009] 6 MLJ 783, the Federal Court had reversed both the decisions of the Court of Appeal (reported in [2008] 5 MLJ 625) and the High Court. The other 3 cases cited by the Defendant’s learned counsel (3 Cases) can be easily distinguished from this case on one or more of the following grounds:

 

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(a) there was no evidence in the 3 Cases such as the 21 Invoices and the Statement of Account;

 

(b) the Defendant’s failure to object to the 21 Invoices and the Statement of Account;

 

(c) the Defendant itself acknowledged the Total Due in Messrs YKT’s Query;

 

(d) the Plaintiff’s 17 WhatsApp Messages and the Defendant’s failure to reply to any one of the Plaintiff’s 17 WhatsApp Messages;

 

(e) the Defendant’s 4 Part Payments; and/or

 

(f) the Defendant’s failure to reply to the Plaintiff’s Demand dated 28.1.2015.

 

29. I will discuss later in this judgment on whether the Plaintiff is entitled to charge late payment interest on the Claimed Sum at the rate of 1% per month. For reasons explained above, I am satisfied that the Defendant has failed to discharge the legal onus to raise a triable issue that the Defendant is not liable under the Sale Agreement to pay the Claimed Sum (the prices of the Goods which have been delivered to the Defendant to the Plaintiff without any complaint by the Defendant) after the expiry of the 90 days credit periods in question.

 

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I. No other reason for trial

 

30. This is a simple and ordinary commercial case of sale of Goods which have already been delivered by the Plaintiff to the Defendant without any complaint by the Defendant. There is no circumstance in this case which ought to be investigated by this court. Accordingly, there is no “some other reason for trial” of this case under Order 14 rule 3(1) RC as explained in United Merchant Finance Bhd.

 

J. Plaintiff is not entitled to charge late payment interest on the Claimed Sum

 

31. The Plaintiff relies on the following 2 High Court decisions to contend that the Plaintiff is entitled to charge interest at the rate of 1% per annum on the Claimed Sum as provided in the 21 Invoices:

 

(a) in Tansa Enterprise Sdn Bhd v Temenang Engineering Sdn Bhd

 

[1994] 2 MLJ 353, at 365, Haidar J (as he then was) decided as follows –

 

“In respect of the claim of interest of 1.5% per month for overdue accounts by the plaintiff, the defendant cannot deny this claim as it had full knowledge of this as clearly indicated in the invoices submitted to it by the plaintiff and there was no protest of this claim at all when the invoices were presented to the defendant. I am therefore of the view that the plaintiff is

 

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entitled to claim such interest. It is similarly not a triable issue at all.”

 

(emphasis made); and

 

(b) in Enco Systems Sdn Bhd v Soon Hin Hardware Sdn Bhd [2009] 9 MLJ 535, VT Singham J followed Tansa Enterprise Sdn Bhd and Kamalanathan Ratnam J’s decision in Daya Anika Sdn Bhd v Kuan Ah Hock [1998] 6 MLJ 537. It was decided in Enco Systems

 

Sdn Bhd, at p. 539, 540, 549-551, 552, 553, 554 and 555, as follows –

 

“[1] This is an appeal against the decision of the learned sessions court judge who had on 25 March 2008 granted the respondent’s application for summary judgment under O 26A(1) of the Subordinate Courts Rules 1980 (‘SCR’) for the sum of RM88,101.39. The respondent’s claim against the appellant is for interest payment due at 1.5% per month as at 30 June 2006 on the late payments made after the period of 60 days of the credit facilities granted to the appellant for goods sold and delivered to the appellant. …

 

[2] This court finds that the facts which are not in dispute between the parties are as follows:

 

(a) The plaintiff had sold and delivered goods to the defendant as per the delivery orders and invoices as included in the record of appeal (encl 5) and acknowledged by the plaintiff with the company stamp and signature.

 

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(g) The delivery orders and the invoices which contain the endorsements were sent by the plaintiff and received by the defendant with the endorsements during the period when the goods were delivered to the defendant which is as follows:

 

(i) On the delivery orders, it is endorsed ‘interest will be charged on overdue account at the rate of 1.5% per month’.

 

(ii) On the invoices, it is endorsed ‘interest of 1.5% per month will be charged if payment is not received within the due date without prejudice to our rights to institute legal proceedings for recovery’.

 

[12] This court finds that the one and only issue raised by the defendant to contest the application for summary judgment is that, the plaintiff is not entitled to claim for the interest as the defendant did not agree to pay the interest even though it is admitted that the payment for the goods sold and delivered as stated in the delivery orders and the invoices were settled after the said 60 days grace period.

 

[13] Having gone through the record of appeal (encl 5) which contains the entire pleadings, the rekod rayuan tambahan (encl 9) which contains the order dated 25 March 2008 and the judgment dated 25 March 2008 and upon hearing both parties and after considering the written submissions with the authorities and upon further research carried out by this court,

 

this court finds the learned sessions court judge had not erred in law or on the facts in granting the summary judgment as prayed by the plaintiff for the following reasons:

 

(a) The defendant has admitted receiving the delivery orders and the invoices from the plaintiff for the

 

36

 

goods sold and received which contains the said endorsement.

 

(f) The defendant having received the delivery orders and the invoices with the endorsement on a regular basis have not taken any positive steps to deny or protest or even delete the endorsement during the said period when the delivery orders and the invoices were received by the defendant.

 

(g) Despite the defendant sending several letters to the plaintiff, the defendant in their replies had never denied or protested that the plaintiff is not entitled to claim for interest for the late payments or that their request was ever agreed by the plaintiff as contended by the defendant until their solicitors letter dated 29 August 2006. The defendant had several opportunities to deny or protest the claim for interest payment if in fact they had maintained that they were not liable to pay but they chose not to deny or protest.

 

(h) Merely relying on the credit facilities form (exh NTP 1) which is clearly an application for credit facilities and offering not to be liable for the interest payment, and without producing any consent or agreement from the plaintiff, the defendant cannot escape liability to pay interest at 1.5% per month for over due payments after the 60 days grace period as there is no evidence to support their defence. In fact, the documents, being the delivery orders and the invoices sent to the defendant subsequent to the credit application form expressly states of the payment of interest at 1.5% per month but yet there was no protest for interest payment on the overdue payment after the 60 days grace period.

 

[16] It is clear from the materials disclosed by the affidavits that the plaintiff had, right from the beginning of the business

 

37

 

transaction informed the defendant of its intention to impose interest after the 60 days grace period if payment is not received for the goods sold and delivered to the defendant. On the other hand, the defendant has not produced any counter evidence to raise any triable issue which requires oral examination on the claim for the said interest payment.

 

[19] … In Tansa Enterprise Sdn Bhd v Temenang Enginerring

 

Sdn Bhd[1994] 2 MLJ 353 …

 

In Day a Anika Sdn Bhd v Kuan Ah Hock [1998] 6 MLJ 537, Kamalanathan Ratnam J said:

 

The plaintiff claimed for late payment interest of 1.5% per month amounting to RM224,191.42 as at 31 May 1997, based on a note on the invoices and delivery orders. The note stated that ‘An interest of 1 1/2% per month will be charged on all overdue accounts’. The plaintiff relied on Tansa Enterprise Sdn Bhd v Temenang Engineering Sdn Bhd [1994] 2 MLJ 353 at p 365 (MLJ) [1994] 1 LNS 160, the learned judge held as follows:

 

… The debit notes claiming interest at such rates were never challenged or disputed and therefore ought to be allowed. The defendant, on the other hand, did not submit any authorities except to deny that late payment interest is due. Therefore, I also hold that this is not a triable issue and give judgment for interest at 1.5% per month on the undisputed sum of RM1,014,132.15.

 

[20] This court finds that if the defendant was serious that such an endorsement for interest payment at 1.5% per month in the delivery orders and the invoices were arbitrary and not binding, surely it would have required them to protest and

 

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inform the plaintiff of their objection as expeditious as possible and as expected of a reasonable and prudent business entity and not just wait for a legal notice from the plaintiff’s solicitor and legal advice to dispute the claim for interest payment. The conduct of the defendant is clearly inconsistent with the position they took previously during the time the delivery orders and invoices were received including their fax letter dated 8 March 2006 sent to the plaintiff and their subsequent conduct upon taking legal advice which is a round about turn and an afterthought as submitted by learned counsel for the plaintiff and no doubt is done with the view to delay the plaintiff’s claim.”

 

(emphasis made).

 

32. In HTC Global Services MSC Sdn Bhd, at p. 580, Kang Hwee Ghee J affirmed on appeal, part of the summary judgment entered by the SAR in respect of the price of the services rendered by the plaintiff to the defendant but set aside the other part of the SAR’s summary judgment ordering interest on the ground that the contract in that case did not provide for the imposition of interest.

 

33. I am of the following view:

 

(a) if a contract of sale of goods has provided for interest, the vendor of goods can clearly claim for interest on the price of the goods from the purchaser; and

 

(b) if the contract of sale of goods does not provide for interest, the vendor cannot rely on the equitable estoppel doctrine to contend that the vendor is entitled to interest as provided in the invoice,

 

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delivery order and/or statement of account which has not been objected by the purchaser. The vendor is however entitled under the following statutory provisions to claim for interest, pre-judgment and post-judgment, on the price of the goods from the purchaser –

 

(i) section 61(2)(a) SGA provides as follows –

 

“61(2) In the absence of a contract to the contrary, the

 

court may award interest at such rate as it thinks fit on the amount of the price –

 

(a) to the seller in a suit by him for the amount of the price, from the date of the tender of the goods or from the date on which the price was payable; …”

 

(emphasis added);

 

(ii) section 11 of the Civil Law Act 1956 (CLA) states as follows –

 

“Power of Courts to award interest on debts and damages 11. In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest as such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

 

40

 

Provided that nothing in this section –

 

(a) shall authorize the giving of interest upon interest;

 

(b) shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or

 

(c) shall affect the damages recoverable for the dishonour of a bill of exchange ”

 

(emphasis added); and

 

(iii) Order 42 rule 12 RC provides as follows –

 

“Interest on judgment debts

 

Order 42 rule 12 Subject to rule 12A, except when it has been otherwise agreed between the parties, every judgment debt shall carry interest at such rate as the Chief Justice may from time to time determine or at such other rate not exceeding the rate aforesaid as the Court determines, such interest to be calculated from the date of judgment until the judgment is satisfied”

 

(emphasis added).

 

41

 

A vendor of goods may claim for pre-judgment interest on the price of the goods from a purchaser under –

 

(1) section 61(2)(a) SGA. In Wasco Lindung Sdn Bhd v Lustre Metals & Minerals Sdn Bhd [2015] 9 MLJ 610, [2015] 2 CLJ 427, at paragraph 62, I have decided that s 61(2)(b) SGA allows a purchaser to claim interest on a refund of the price of the goods from the vendor (when the purchaser has not received the goods which have been ordered and paid for by the purchaser to the vendor); or

 

(2) section 11 CLA (interest on debts). Section 11 CLA allows a vendor to claim interest on the price of the goods from a purchaser – Wasco Lindung Sdn Bhd, at paragraph 63.

 

A vendor of the goods can claim for post-judgment interest on the price of the goods from a purchaser pursuant to Order 42 rule 12 RC – Wasco Lindung Sdn Bhd, at paragraph 64.

 

The court has a discretion under s 61(2)(a), (b) SGA, s 11 CLA and Order 42 rule 12 RC to award interest or otherwise in a particular case. If the court exercises its discretion to award interest in a case, the court has further discretionary powers to decide –

 

(1A) the amount of debt on which interest shall be imposed;

 

42

 

(1B)

 

the rate of interest; and

 

(1C) the time period for which interest shall be ordered, namely whether interest shall commence on the date of delivery of the goods, the date of expiry of the credit period in question, the date of demand for payment of the price or the date of filing of the suit.

 

34. When an agreement of sale of goods is silent on the question of interest,

 

I am not in favour of applying the equitable estoppel doctrine to allow a vendor to claim interest, pre-judgment and post-judgment, on the price of the goods from a purchaser. This view is premised on the following reasons:

 

(a) equitable principles can only apply subject to written law. In this case, the equitable estoppel principle cannot apply in respect of prejudgment and post-judgment interest which have been expressly provided in s 61(2)(a), (b) SGA, s 11 CLA and Order 42 rule 12 RC. It is clear from the opening words in s 3(1) CLA that any application of English rules of Equity, including equitable estoppel, is subject to Malaysian written law – the Federal Court’s judgment in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd (Bar Council Malaysia, Intervener) [2004] 2 MLJ 257, at 265-266. Section 3 CLA provides as follows –

 

“3. Application of U.K. common law, rules of equity and certain statutes

 

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(1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall –

 

(a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956;

 

(b) in Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 1 December 1951;

 

(c) in Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1949, subject however to subparagraph

 

(3)(ii):

 

Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary ”

 

(emphasis added);

 

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(b) there is an equitable maxim which states that Equity follows the law (the application of Equity shall be subject to the operation of statutes) – please see Chang Min Tat J’s (as he then was) judgment in the High Court case of Wong Kim Fatt v Leong & Co Sdn Bhd & Anor [1976] 1 MLJ 140, at 142. As such, the operation of the equitable estoppel principle shall “follow’ and be subject to s 61(2)(a), (b) SGA, s 11 CLA and Order 42 rule 12 RC (which provide for the court’s power to order interest as the court sees fit); and

 

(c) if this court orders interest at the rate of 1% per month as stated in the 21 Invoices, this means the Defendant has to pay interest on the Claimed Sum at the rate of 12% per annum which is much higher than the prevailing interest rate imposed by licensed financial institutions for credit facilities. A vendor of goods cannot be equated to a licensed financial institution under the Financial Services Act 2013 or a licensed moneylender under the Moneylenders Act 1951. The application of the equitable estoppel principle (to allow the Plaintiff to claim interest at the exorbitant rate of 12% per annum), in my opinion, will cause an injustice and inequity to the Defendant. The equitable estoppel principle should not be applied to cause an injustice and inequity.

 

35. Based on the above reasons, I exercise my discretion as follows:

 

(a) pursuant to s 61(2)(a) SGA and s 11 CLA, I allow pre-judgment interest at the rate of 5% per annum on the Claimed Sum from

 

45

 

1.7.2014 until the date of this summary judgment. I have not overlooked the fact that the Plaintiff has given 90 days credit period to the Defendant. Strictly speaking, interest at the rate of 5% per annum shall accrue on each sum due under the 21 Invoices after the expiry of 90 days from each of the 21 Invoices. The first of the 21 Invoices was dated 18.2.2014 and the last date of the 21 Invoices, was 1.7.2014. In the exercise of my discretion under s 61(2)(a) SGA and s 11 CLA, it is not unjust for pre-judgment interest at the rate of 5% per annum on the Claimed Sum to commence from

 

1.7.2014 (the last date of the 21 Invoices); and

 

(b) under Order 42 rule 12 RC, I order post-judgment interest at the rate of 5% per annum on the Claimed Sum from the date of the summary judgment until the date of full payment of the Claimed Sum.

 

K. Summary judgment for Plaintiff

 

36. The upshot is I grant summary judgment for the Claimed Sum with –

 

(a) interest at the rate of 5% per annum on the Claimed Sum from

 

1.7.2014 until the date of full payment of the Claimed Sum; and

 

(b) costs of Court Enc. No. 7.

 

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WONG KIAN KHEONG

 

Judicial Commissioner High Court (Commercial Division) Kuala Lumpur

 

DATE: 11 JANUARY 2016

 

Counsel for Plaintiff: Mr. Loh Chu Bian (Messrs Maylee Gan & Tai)

 

Counsel for Defendant: Mr. Joel Lim Phan Hong (Messrs Joel & Mei)

 

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